Extractive sector: waiting for justice

19 January 2018

Canada is the largest investor in the Colombian extractive sector, an industry which covers forty percent of the country’s territoryi. The growth of this sector has been accompanied by increases in human rights abuses committed by transnational corporations (TNCs) operating in the region. These abuses are acutely felt in indigenous communities, where the employment of both paramilitary and state security forces have been linked to violence, kidnappings and displacementii.

In response to these issues, the Canadian government developed a Special Office for the Extractive Sector, followed by a Corporate Social Responsibility Strategy (CSR) four years later in 2009iii. The CSR policy encourages multinationals to promote “Canadian values” while operating abroad, and the Office of the Extractive Sector is intended to mediate disputes between communities and companies. In terms of enforcement, both have come under criticism.

On January 17th 2018 Canadian government finally announced the creation of an independent ombudsman who will be able to open investigations and get document from companies. Its a step long hoped for, but it is still not enough as it does not involve any legal mechanism.

The CSR strategy relies on the government to with-drawl their support for noncomplying companies in the foreign market, and the Office of the Extractive Sector is unable to impose sanctions. In addition, the office cannot make public statements about human rights issues, nor help fund the involvement of communities who wish to make a rights claim. With neither solution offering a strong enforcement mechanism, the Canadian government’s commitment to corporate accountability in Colombia is lacking.

At the international level, protections against corporate human rights violations are currently outlined by the UN Guiding Principles on Business and Human Rightsiv. These principles were drafted in 2011 by Special Representative John Ruggie. Although accepted by all member states to the Human Rights Council, the Guiding Principles have been difficult to applyv. In addition, they have been criticized for advancing biases in favour of business interests. Critics have stated that “Ruggie’s reasoning did not put the spotlight on the victims of human rights abuses, but in contrast portrayed TNCs as victims of complex circumstances, lack of knowledge and stakeholder resistance.” vi

During the past four decades, several attempts to establish legally binding instruments for corporate accountability have been discussed, but due to corporate opposition, have not been realized. In 2013, Ecuador launched an initiative to reintroduce the topic in a statement on behalf of 29 other countries.vii The statement noted some of the limitations of the Guiding Principles, arguing that the development of a legally binding framework to regulate the work of transnational corporations is necessary.

The creation of a legally binding international tribunal for business and human rights disputes was discussed at the 2017 UN Forum for business and Human Rights.viii The UN has also addressed the issue through an 0pen-ended Intergovernmental Working Group on Transnational Corporationsix, as well as a Working Group on Human Rights and transnational corporations and other business enterprises.x

While a consensus has yet to be struck, a working paper published by the Chairperson-Rapporteur of Ecuador has outlined what an international tribunal may look like, should the idea be developed under future negotiations. The ­working paper states that an international tribunal should seek to prevent business human rights abuses by establishing “clear rules for States and other stakeholders involved in the prevention and protection of human rights.”xi In terms of scope, the paper asserts that a tribunal should apply to all human rights violations caused by TNCs “that have a transnational character, regardless of the mode pf creation, control, ownership, size or structure.”

Although it states that ending corporate impunity should be the final goal of the tribunal, it advances a state-centric approach by emphasizing principles of sovereignty and nonintervention. This echoes the limitations observed in the implementation of the Guiding Principles, and calls into question the ability to enforce corporate liability where political will is lacking.